The Public Guardian v DA & ors [2019] WTLR 313
Spring 2019 #174The Public Guardian filed a number of applications under s23 and schedule 1, para 11 of the Mental Capacity Act 2005 (the 2005 Act) in two test cases seeking the court’s guidance as to whether or not it was appropriate to register, with or without amendments, instruments purporting to create a lasting power of attorney (LPA).
In the first series of cases the applications concerned provisions in LPAs for personal welfare which contemplated euthanasia or assisted suicide by the attorneys. In some cases, the provisions were expressed in mandatory terms which appeare...
PCB v JMA & ors [2018] WTLR 961
Autumn 2018 #173
JMA, who was aged 72 years, suffered from early onset dementia and lived in a care home which she paid for privately. She no longer had the capacity to take decisions about making gifts and the medical evidence suggested that she would only live for a further 3 to 5 years. The applicant was a son by her first marriage; her daughter having died in January 2009. JMA inherited from her last husband, who died in January 2010, his entire estate which was derived from the sale of businesses which had realised approximately £11m. The applicant was appointed sole attorney under a L...
TH v JH [2018] WTLR 693
Summer 2018 #172The applicant, TH, the donee of an enduring power of attorney for the property and affairs of his father, HH, applied for retrospective approval of payments and gifts made between 2011 and 2017 in the sums of £88,366 in favour of the applicant and his family, and £15,196 in favour of his brother JH, the first respondent, and his family. JH opposed approval of all sums save for £30,000.
HH lacked capacity and was unable to participate in any meaningful way in decisions about his welfare or property or affairs. He required constant care from August 2010. TH provided sporadic ...
Re DMM [2018] WTLR 1263
Winter 2018 #170DMM suffered from Alzeimer’s Disease. He wanted to marry his long term partner SD. EJ, one of DMM’s three daughters, brought an application for a declaration as to whether DMM had capacity to marry.
Held:
- 1) The fact that a new marriage revokes a will was information a person should be able to understand, retain use and weight to have capacity to marry.
- 2) Expert evidence had been produced concluding that DMM Had capacity to marry because he did understand his will would be revoked and the financial position of his three daughters would be af...
The Public Guardian v Matrix Deputies Ltd & anr [2018] WTLR 1387
Winter 2018 #170This judgment concerned proceedings brought by the Public Guardian seeking (1) discharge of all appointments of Matrix Deputies Ltd (Matrix) and its employees DW and OM as property and affairs deputy; (2) the refusal of any pending applications; and (3) the appointment of either the local authority or a panel deputy instead.
There was ultimately no contested hearing in this matter. The appointments of OM and DW were discharged and they were discharged from proceedings with their consent. Matrix continued to contest the applications until a matter of days before the final hearing, ...
SAD & anr v SED [2018] WTLR 1439
Winter 2018 #170The respondent, who had a history of mental health problems, made a lasting power of attorney (‘LPA’) for property and financial affairs on 1 April 2014 appointing as attorneys her mother and her two daughters, the latter of whom were the applicants. It was then registered by the Office of the Public Guardian. On 25 September 2015 the respondent executed a deed, which had been prepared by a solicitor whom she had not previously instructed, revoking the LPA. Its registration was subsequently cancelled by the Office of the Public Guardian. On 4 December 2015 the applicants made an applicat...
Re Various Incapacitated Persons [2018] WTLR 1511
Winter 2018 #170The court was asked to consider the applications, made on behalf of 36 incapacitated persons, to appoint a trust corporation as their property and affairs deputy. There was currently no agreed system through which the court could know that any particular trust corporation was suitable to be appointed as deputy, nor a ‘panel’ of approved trust corporations.
The following questions arose:
- A. Could a trust corporation lawfully act as a deputy?
- B. How could a trust corporation satisfy the court that it was appropriate for it to act as deputy?
- C. How shou...
ADS v DSM & ors [2017] WTLR 819
Autumn 2017 #169JKS and her late husband had two sons, ADS and DSM. She brought proceedings against the former in August 2012 seeking relief in respect of (a) a transfer by her late husband to ADS of his parents’ matrimonial home (at which she and her late husband continued to live) and (b) a transfer by her late husband to ADS and his wife of a piece of land adjoining other property. Serious allegations were made by JKS, including allegations of undue influence by ADS. On the death of JKS’s husband a significant sum of inheritance tax was due in respect of the reservation of benefit in the matrimonial ...
The Public Guardian’s Severance Applications [2017] WTLR 1145
Autumn 2017 #169The Public Guardian brought various consolidated applications for severance under para 11((3) of Schedule 1 of the Mental Capacity Act 2005 (the MCA 2005) in respect of various lasting powers of attorney which were potentially unlawful or ineffective by reason of the operation of s9 MCA 2005, which provides that an LPA is not created unless it is made and registered in accordance with Schedule 1 of para 19.
Held:
- 1) As to MC, the donor at s7 of the LPA had instructed that ‘Any financial decisions up to the value of £150.00 c...